Cable carriage initiative may violate First Amendment

May 14, 2007

John Kneuer, chief of the Commerce Department’s National Telecommunications and Information Administration (NTIA), last week warned that an FCC initiative that would require multiple cable carriage of broadcast stations could ignite First Amendment issues that interfere with the 2009 DTV transition.

Kneuer’s warning was made during a panel discussion of The Cable Show in Las Vegas.

The FCC unanimously adopted the tentative rules regarding cable carriage on April 25. Pushed by FCC Chairman Kevin Martin, the proposal could require cable operators to carry up to three versions of broadcast signals to accommodate customers. Currently, the FCC is at the stage of seeking public comment on the proposed rule.

Under what’s been termed a “triple carriage” approach, a television station would be offered on a cable system in a downconverted format — in SD digital and in HD digital — for viewing on analog sets.

The cable industry, having promised to ensure digital access to broadcast signals, strongly opposes the FCC mandate, terming it unnecessary and unconstitutional. It is likely the industry would challenge the rule in court.

Kneuer, who said that he was merely making an “observation,” suggested that the FCC should “be thoughtful about this in terms of the constitutional issues,” which he described as contentious.

He said industry stakeholders require as much “certainty” about regulations as possible “from now through the transition” in 2009.

Martin, also attending The Cable Show, told the “National Journal” that the proposed cable-carriage regulations would minimize the transition’s impact.

Fifty percent of cable homes today are still analog cable homes, he said. “Without us clarifying what the rules would be, it’s not clear that all of those homes would still have access to the broadcast signals after that digital transition.”